MSPB Holds that Veterans’ Preference Eligible Status Is Not an Affirmative Factor in Suitability Determinations

A United States veteran (“the appellant”) applied for a position as a Diplomatic Security Engineering Officer with the Foreign Service of the U.S. Department of State. He received a conditional offer of appointment as a Foreign Service Career Candidate, but it was subject to satisfactory completion of the Foreign Service suitability review process. During the course of that process, a background examination returned unfavorable information, and the appellant’s candidacy was terminated by the Final Review Panel. The appellant appealed to the Appeals Committee of the Board of Examiners for the Foreign Service, but the termination of his candidacy was upheld. He then appealed the decision to the MSPB, amending his appeal to include a claim under the Veterans Employment Opportunity Act (“VEOA”). This VEOA claim was docketed separately from the suitability determination appeal, and after climbing up the judicial ladder from the Merit Systems Protection Board (“MSPB”) administrative judge, to the full Board, and finally to the Federal Circuit, the VEOA claim was remanded to the Board to consider the merits of the suitability determination. On February 12, 2014, the Board denied the appellant’s request for corrective action under VEOA.

The MSPB administrative judge, considering the appellant’s claim on appeal from the Appeals Committee of the Board of Examiners for the Foreign Service, found that the appellant, pursuant to the administrative redress statute for preference eligibles (5 USC § 3330a(a)), established Board jurisdiction. The MSPB administrative judge also found, however, that the appellant’s VEOA claim failed on the merits.

After reviewing the appeal from the administrative judge’s decision, the Board dismissed the case for failure to state a claim and declined to reconsider the suitability decision based on the “law-of-the-case” doctrine, where it had already decided, in the appellant’s companion “suitability” (rather than VEOA) claim also recently before the Board, that the Board lacked jurisdiction to review the agency’s suitability determination.

The Federal Circuit found that the Board incorrectly applied the law-of-the-case doctrine, explaining that the “merits of the suitability determination might serve as a factual predicate for a valid VEOA claim, and thus the Board was not foreclosed from considering the merits of the suitability determination.” In support of their finding, the court cited Lazaro v. Department of Veterans Affairs, 666 F.3d 1316, 1321 (Fed. Cir. 2012), stating that the Board, under VEOA, has jurisdiction to determine whether an agency affords a preference eligible applicant the right to compete for a position, and whether the agency’s determination that the applicant is not qualified is made in conformance with relevant veterans preference statutes and regulations.

On remand from the Federal Circuit, the Board addressed whether it “may (or must)….address suitability issues in the context of the petitioner’s VEOA claim.” The Board began their analysis by noting that the appellant had fully satisfied the jurisdictional elements of VEOA by exhausting his administrative remedies. Citing Lis v. U.S. Postal Service, 113 M.S.P.R. 415 (2010), the Board stated that the appellant’s burden before the MSPB was a showing by preponderant evidence that the agency violated his rights under a statute or regulation relating to veterans’ preference.

The appellant alleged several violations of his veterans’ preference rights under 22 USC § 3941(c) and 22 CFR § 11.20(a)(4): the agency delayed a final decision on his application while non-veterans were being hired for a limited number of existing positions; the agency issued a negative suitability determination; the agency incorrectly described his alleged poor social skills and a client complaint as “employment misconduct” and ignored his attempts to dispute the evidence underlying the suitability determination; and the agency failed to follow its own procedures and policy in denying his agency appeal.

22 USC § 3941(c) states that “the fact that an applicant for appointment as a Foreign Service officer candidate is a veteran or disabled veteran shall be considered an affirmative factor in making such appointments. Agency regulations at 22 CFR § 11.20(a)(4) state that “veterans’ preference shall apply to the selection and appointment of Foreign Service specialist career candidates. The appellant claimed that the agency narrowly construed the aforementioned statute and agency regulation in order to deny him affirmative consideration for the position.

The Board examined the history of the case, which it observed included a full and fair opportunity for the appellant to show that the agency failed to follow sections 3941(c) and 11.20(a)(4). The agency, for their part, submitted documentary evidence related to its hiring process in this matter which showed that the appellant, in the Board’s words, “simply failed to meet all qualifications for the Foreign Service position” in question in this case.

The key factor in the Board’s analysis was the proper timing for the addition of points stemming from the appellant’s status as a veteran. The Board detailed the timeline surrounding the appellant’s application to show that the appellant was properly found unsuitable before the time when his status as a veteran would be taken under consideration as an affirmative factor.

First, the appellant passed the Foreign Service examination and received a conditional offer of employment which was contingent upon suitability clearances. Then, the background investigation returned information which raised suitability issues. The Final Review Panel reviewed this information and concluded that the appellant was not suitable for the position.

The Board also observed that “had the appellant been found suitable” and therefore met all of the “qualifications” necessary for consideration, the appropriate number of points (from his veteran status) would have been added to his examination score, and he would have been placed on the register hierarchy at a point dictated by his relative standing based on his score. Because he was found unsuitable, the appellant never reached that point in the process.

The appellant argued that the agency should have given him an “affirmative factor preference” in determining his qualifications for the position, but could not identify any statute or regulation that would allow an agency to disregard its suitability determination disqualifying a preference eligible veteran. Although the statutes and regulations cited by the appellant clearly outline a process for applying the “affirmative factor” of veterans’ preference, neither section details when the preference points must be added, or more topically, whether the “affirmative factor” may offset disqualification otherwise.

The Board distinguished this case from cases where agencies failed to heed specific statutes or regulations relating to veterans’ preference that require additional favor for veterans when assessing the qualifications of preference eligible who apply for government positions. In Lazaro v. Department of Veterans Affairs, 666 F.3d 1316, 1321 (Fed. Cir. 2012), the Federal Circuit remanded a case to the Board to assess an applicant’s qualifications under 38 USC § 4214(b), 5 USC § 3311, and 5 CFR § 302.302(d), which require agencies to credit veterans who have not reached minimum education requirements with any and all extra-educational experience material to the position.

However, in Lazaro, as the Board noted, there were readily identified statutory provisions which governed the application of suitability requirements, whereas in this case, applicable statutes and regulations did not provide that preference eligible status be considered during the suitability determination process.

For the above stated reasons, the Merit Systems Protection Board found that the appellant did not show that the agency violated his rights under any statute or regulation relating to veterans’ preference, and denied his request for corrective action.

Read the full case, Beyers v. Department of State, here.

This case law update was written by Conor D. Dirks, associate attorney,Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of private sector and federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.


Posted in Case Law Update

Tags: MSPB, Merit Systems Protection Board, suitability determination, conditional offer of appointment, Foreign Service



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